DPP v Fitzpatrick

(a) whilst you were friends with Mr Curtin from school and were shocked by his passing, you could not recall when his death occurred;

(b) you could not recall Mr Curtin's partner's name;

(c) you did not recall ever being called 'Fizz';

(d) you did not know either victim;

(e) you could not recall what you had done on 4 February 2023;

(f) you had never been to the relevant address;

(g) you never drove your mother's car;

(h) you could not recall anything about your mother's car being driven on Eastlink on 4 February 2023;

(i) you could not explain why your phone appeared to be in the area on 4 February 2023;

(j) you were not familiar with firearms; and

(k) you could not explain why your DNA was located on the shotgun cartridges located at the scene.

1. Following the interview, you were released and have remained at liberty in respect of this matter until today's date. Accordingly, you have no pre-sentence detention referable to this offending.

1. There were no victim impact statements filed in this matter. Mr Hadley passed away in 2024 from causes unrelated to the offending and Mr Smith did not make a victim impact statement. However, at the time of making his statement to police, Mr Smith identified that the incident had made him feel on edge as he did not know if it was just a warning, or if somebody was going to come back and try and get him properly next time. I am of the view that it is open to me on the material before the court to find that the incident would have been frightening for both Mr Hadley and Mr Smith and would have had an impact on Mr Smith in the manner outlined in his police statement. I have taken victim impact into account in this limited manner in sentencing you.

1. You are now 33 years of age, and you come before this court with a limited and somewhat dated criminal history.
2. Your first appearance before the court was in 2015 as a 22-year-old. On that occasion you were sentenced in respect of a number of driving offences for which you were fined. Then between February 2016 and March 2019 you appeared before the court on a number of occasions for offences which included driving, drug, family violence, stalking, and injury-related offences, and on each occasion you were also sentenced to fines.
3. Your last appearance before the court prior to this matter was in May 2019. On that occasion you were sentenced for a consolidation of charges which included weapons, drug, family violence and stalking offences. You were convicted and placed on a community correction order with conditions including that you perform unpaid community work, be subject to supervision and undergo treatment and rehabilitation for drug and alcohol issues. You successfully completed this order as reflected in the fact that there are no further entries in your criminal history which pre-date this current offending.
4. As can be seen from this brief summary of your criminal history, the current offending represents a significant escalation from the matters which have previously brought you before the court. Whilst you do have some prior weapons offences and also a prior offence of recklessly causing injury, the relative gravity of those matters is reflected in the penalties which were imposed.
5. Subsequent to the current offending you have also been sentenced for a small consolidation of further offences which were committed in March 2025. On 19 May 2025, you were sentenced in the Magistrates' Court in relation to driving whilst disqualified, failing an oral fluid test and common law assault, which I am told arose from a verbal altercation with your mother, in circumstances where you had a chainsaw in your hands. You were remanded in custody for 35 days in respect of this matter before being released on bail in April 2025. You were ultimately sentenced to a two-year adjourned undertaking with a condition that you continue to engage in the Youth You program, which is a matter I will return to in due course. Your counsel confirmed that whilst the 35 days which you spent on remand for these matters was not declared on the sentence, it was taken into account by the magistrate in sentencing you.
6. Clearly, the subsequent matter for which you have been sentenced cannot, and does not, aggravate the current offending. However, it is relevant to an assessment of your prospects of rehabilitation, which I will return to later in these reasons for sentence.

1. There was no dispute on the plea that the offending for which I am sentencing you is serious offending. You discharged a firearm twice in the direction of a residential property in the early hours of the morning, in circumstances where there were two people present inside the property. Whilst not extensively pre-meditated, your offending did involve a degree of planning in that you did not live close to the address of the victims, and you were armed when you attended at their home.
2. Your use of a firearm in this offending significantly elevates the gravity of the charge of reckless conduct endangering serious injury, and I am of the view that your offending falls above the middle of the range of gravity for such offences. Having said that, in sentencing you for the charge of being a prohibited person using a firearm, I have been careful not to aggravate the sentence imposed on that charge by reference to the seriousness of the offending itself, as this would constitute double punishment. However, as submitted by the prosecution and conceded by your counsel, it is necessary in sentencing you for there to be some modest cumulation between the sentences imposed on each charge to reflect the separate conduct of your prohibited status at the time of using the firearm.

1. Your plea of guilty in this matter, whilst entered after a contested committal hearing at which one of the victims gave evidence, is still a valuable plea of guilty.
2. The matter was first listed for filing hearing in the Magistrates' Court on 7 February 2024, and the contested committal occurred over two days on 11 and 12 December 2024. At the time of being charged and committed to this court, you were facing a number of more serious offences than those which you have ultimately pleaded to, including charges of reckless conduct endangering life, using a firearm to discharge bullets at a premises and making a threat to kill.
3. Upon being committed to this court the matter was initially listed for a case assessment hearing. However, the hearing was vacated and instead you sought a sentence indication on the current offences which came before me on 5 August 2025. You subsequently accepted the indication and were arraigned on 19 August 2025. The plea then proceeded last week, on 7 October 2025.
4. Your plea is valuable for a number of reasons. Firstly, you have saved the witnesses, and in particular the victim, from having to give evidence again at trial. Secondly, your plea facilitates the course of justice and has significant utilitarian value. Any trial in this matter would have been of some length and carried a number of complications due to the passing of one of the victims prior to the committal and the substantial reliance on expert evidence in the prosecution case. Thirdly, I also accept that your plea of guilty demonstrates an acceptance of responsibility by you for your conduct and a level of remorse, with this conclusion being supported by the content of the references which were tendered on your behalf on the plea.
5. In the circumstances, I have given you a substantial discount on sentence for your plea of guilty.

1. Turning now to your personal circumstances.
2. You are the youngest of three children born to your parents, Maria[6] and Scott.[7] You were brought up in a stable and loving family. Your father runs a successful business in flooring installation, whilst your mother has over the years juggled looking after the household responsibilities and working part-time in the family business.
3. You attended your local primary school and then a private Catholic secondary school. I am told that you struggled with literacy, numeracy and making social connections, and consequently became more introverted and started to engage in truancy as you progressed through high school. When you were in Year 8, your parents hired a private tutor to assist you with your schooling, and you went on to pass Year 10. You then left school to pursue a trade.
4. After leaving school you initially started working full time in your grandfather's flooring business. Then, when you were 18 years of age, you commenced a plumbing apprenticeship. You enjoyed the physical work but struggled with the TAFE component and found yourself unable to complete the written assignments. Accordingly, you returned to work in the flooring business and have remained in that industry ever since.

1. You do have a history of drug use which is reflected in your criminal record. I am told that you first started experimenting with cannabis and hallucinogenic mushrooms when you were in your late teenage years. At 19 years of age, you were introduced to amphetamine through your football team mates, and soon after moved on to methamphetamine. Your behaviour deteriorated, as did your mental health, and you suffered a series of breakdowns in your family and intimate relationships. You became a respondent to a number of intervention orders protecting your mother, brother and an ex-partner, and ultimately started to engage in offending behaviour.
2. Your use of illicit substances continued until 2019 when you were remanded for a short period of time prior to being sentenced to the community correction order in May 2019. Whilst on that order I am told that you managed to cease drug use and, as previously noted, you successfully completed all requirements of your order. It is notable that the cessation of your criminal history coincides with your cessation of drug use.
3. Unfortunately, you relapsed back into drug use at the end of January 2023 after the death of Mr Curtin who was a very close friend. At the time of the current offending, you were consuming up to half a gram of methylamphetamine a day.

1. I am told that in addition to your drug issues you have struggled with mental health issues over the years. When you were 21 years of age, you were diagnosed with depression and were prescribed anti-depressant medication, which I am told you are currently compliant with. You have also struggled with grief since losing your best friend in January 2023 and your grandfather in January 2025.
2. The only documentary material about your mental health which was tendered on the plea was a letter from your treating doctor, Dr John Reid, which was dated 4 August 2025 which confirmed that you are currently prescribed duloxetine (which is a medication used to treat depression and anxiety). On the basis of the material before the court, I am not in a position to be able to assess to what extent, if any, your mental health issues were impacting upon you at the time of your offending. I am also unable to assess the current state of your mental health issues upon you, or the extent to which they may impact upon you during any time in custody. As such your mental health issues and your ongoing grief in relation to the loss of your best friend and your grandfather, simply form part of your background and personal circumstances rather than amounting to any specific mitigatory factor in sentencing. I will, however, make note of those issues as a custody management issue to try and ensure that you receive appropriate treatment whilst you are in custody.

Current circumstances and prospects of rehabilitation

1. Subsequent to your most recent offending in March 2025, you enrolled in the Youth You program. This is a voluntary 10-month program to support young people aged between 18 and 35 years of age which involves drug and alcohol counselling, exercise classes and one-on-one mentoring. You joined the program on 19 April 2025 prior to being sentenced on your most recent offending and have remained engaged with it since that time, noting that your engagement in the program is now also a condition of the adjourned undertaking imposed upon you in May 2025. I am told that the program requires you to attend for sessions four times per week, and you have committed to doing so.
2. A letter from Glenn Munso, the founder and head facilitator of the Youth You Program, was tendered on the plea. In that letter Mr Munso stated that you had, as at the time of writing, shown consistent attendance and engagement in all aspects of the program. You were also maintaining complete sobriety, were demonstrating a genuine commitment to improving your life and were focusing on rebuilding relationships and trust within your family. Mr Munso spoke positively of your honesty and willingness to grow and noted that you have a deep desire to take responsibility for your past whilst working towards a positive future. Whilst Mr Munso does not mention this in his letters, I was also told on the plea that you have been advised by Mr Munso that you would be welcome to return to the Youth You Program upon your release from custody, and I understand that you intend to do so.
3. In addition to engaging in the Youth You Program, since April you have also been working on a casual basis with your Uncle Andrew in the floor covering industry. Your uncle has provided two references to the court in which he praised your strong work ethic, your reliability and your willingness to learn. He noted that you have been respectful to him and the other tradespeople with whom you are working and are a punctual and dependable employee. Your uncle acknowledged that the charges you are facing are serious but observed that you are taking steps towards making better life choices and are genuinely committed to turning your life around. In his most recent reference, your uncle noted that he would be happy to employ you on a permanent basis after your release from custody.
4. I also received references from your mother, your Aunt Mary,[8] your partner of almost three years, Kathy Marshall,[9] and Michelle Ross,[10] a close friend of yours who has known you for approximately 17 years. Each of the references spoke of you as someone who is respectful, caring and considerate of others. Your Aunt Mary noted the care and support you have provided to your grandmother since your grandfather passed away in January this year; Ms Ross noted the compassion and maturity with which you fulfilled the role of godfather to her 11-year-old son; Ms Marshall described the love, care and attention you give to her nieces and nephews and your mother spoke of the strong bond and connection which has re-developed between the two of you over the past months. Additionally, each of your referees commented on the considerable efforts you have been making to rehabilitate yourself and to rebuild your life in a positive manner. I note that each of your father, mother, Aunt Mary and Ms Marshall were in court supporting you throughout these proceedings.
5. Despite your prior and subsequent history of offending and the seriousness of your offending behaviour on this occasion, I am of the view that you do have reasonably good prospects of rehabilitation. Clearly, those prospects are tied to you continuing to undertake treatment for your drug and mental health issues and remaining abstinent from illicit substances. However, having regard to your acceptance of responsibility for your offending, ongoing family support, strong history of employment, availability of employment upon release, the steps you have taken since April of this year towards rehabilitation and your ability to access the Youth You Program again on your release from custody, I am of the view that there is a basis for considerable optimism regarding your prospects of rehabilitation.

Sentencing Submissions, Current Sentencing Principles, and Comparative Cases

1. There was little dispute between the parties as to the appropriate disposition in this matter. On the plea, Mr Hardisty on behalf of the prosecution submitted that having regard to all of the relevant sentencing factors in this case, the only disposition open is a term of imprisonment consisting of a head sentence and non-parole period.
2. Ms Grunwald did not take issue with this submission conceding that a term of imprisonment with a non-parole period is warranted in the circumstances. However, Ms Grunwald submitted that given your plea of guilty and your prospects of rehabilitation, your sentence should be fashioned in such a manner as to afford you the opportunity of an extended period of supervision and treatment in the community.

Current Sentencing Practice and Comparative Cases

1. When sentencing you, one of the matters which I must take into account is current sentencing practice. To that end, as part of the sentencing submissions, the prosecution referred me to two cases[11] where sentences had been imposed for offences which included reckless conduct endangering serious injury and possession or use of a firearm by a prohibited person.
2. As rightly identified by counsel, neither of the cases provided directly equate with the circumstances of you or your offending. However, I have read and taken into account both of the cases I was referred to as they do provide guidance as to the application of the relevant sentencing principles in this area and are also yardsticks that illustrate, although do not define, the possible range of sentences available. Whilst the provided cases are relevant for those reasons, ultimately, I have sentenced you in this case on the basis of applying the principles to the specific facts of you and your case.

Sentencing Purposes and Other Sentencing Principles

1. Pursuant to s5 of the Sentencing Act 1991 (Vic), the only purposes for which sentence may be imposed are just punishment, denunciation, deterrence (both general and specific), rehabilitation and community protection. Given the nature and gravity of your offending, general deterrence and denunciation carry substantial weight in the sentencing synthesis. I must also put some weight on specific deterrence given your prior offending and the escalation between your prior offending and the current offending, although the weight to be given to those sentencing purposes is somewhat tempered by the progress you have made towards rehabilitation over the past six months. Moreover, I am also of the view that in your case, long term community protection is going to be best effected through you continuing on a rehabilitative pathway in respect of your drug and mental health issues. As such, rehabilitation is also an important sentencing purpose in your case.

1. Taking into account all of the relevant sentencing factors, purposes and principles, including the principles of totality and parsimony, I agree with both counsel that the only appropriate sentence in this case is a term of imprisonment with a head sentence and non-parole period. However, having regard to your personal circumstances and the conclusion I have come to in respect of your prospects of rehabilitation, I am of the view that any sentence I impose should contain within it an opportunity for you to be subject to supervision and treatment in the community on parole for an extended period of time. I note that in sentencing you, I have also borne in mind that you may be required to serve every day of the sentence which I impose, and I have endeavoured to ensure that the sentence I impose is still an appropriate one if that were to be the case.
2. So, if you could now please stand, Mr Fitzpatrick.

1. On Charge 1, reckless conduct endangering serious injury, you are convicted and sentenced to a term of imprisonment of two years and four months. This is the base sentence.
2. On Charge 2, prohibited person use firearm, you are convicted and sentenced to a term of imprisonment of 18 months.
3. I direct that four months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
4. The total effective sentence is therefore a term of imprisonment of two years and eight months.
5. I direct that you serve a minimum term of one year and eight months before becoming eligible for parole.

1. I note that there is no pre-sentence detention to declare.

Section 6AAA Declaration

1. Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today - so if you had gone to trial and a jury had found you guilty and then I had to sentence you, you would have been sentenced to a total effective sentence of four years with a non-parole period of two years and nine months. So, you have saved a considerable period of time on your sentence through your plea of guilty.

1. Pursuant to s78(1) of the Confiscation Act, I make a disposal order in respect to the following items:

(a) Exhibit 4: fired cartridge case;

(b) Exhibit 5: fired cartridge case;

(c) Exhibit 6: fired wad component;

(d) Exhibit 7: fired wad component;

(e) Exhibit 8: fired wad component;

(f) Exhibit 9: fired wad component; and

(g) Exhibit 10: quantity of shot pellets.

[11] Moran v The King [2024] VSCA 13, and Cooper v The Queen [202] VSCA 288